The Role of the Medical Expert at a Social Security Hearing

While it is not clear how often Administrative Law Judges use medical experts for Step 3 assessments, it is likely that most will use a medical expert when they think Step 3 will be dispositive in the case. The use of a medical expert(ME) is entirely within the discretion of the ALJ, unless the Appeals Council and/or Federal Court have mandated it or when equaling is at issue. Although the latter may not really be a requisite anymore.

See discussion below. The HALLEX, at I-2-5-34, recommends using a medical expert when:

• The ALJ is determining whether a claimant's impairment(s) meets a listed impairment(s);
• The ALJ is determining the usual dosage and effect of drugs and other forms of therapy;
• The ALJ is assessing a claimant's failure to follow prescribed treatment;
• The ALJ is determining the degree of severity of a claimant's physical or mental impairment;
• The ALJ has reasonable doubt about the adequacy of the medical record in a case, and believes that an ME may be able to suggest additional relevant evidence;
• The medical evidence is conflicting or confusing, and the ALJ believes an ME may be able to clarify and explain the evidence or help resolve a conflict;
• The significance of clinical or laboratory findings in the record is not clear, and the ALJ believes an ME may be able to explain the findings and assist the ALJ in assessing their clinical significance;
• The ALJ is determining the claimant's residual functional capacity, e.g., the ALJ may ask the ME to explain or clarify the claimant's functional limitations and abilities as established by the medical evidence of record;
• The ALJ has a question about the etiology or course of a disease and how it may affect the claimant's ability to engage in work activities at pertinent points in time, e.g., the ALJ may ask the ME to explain the nature of an impairment and identify any medically contraindicated activities; or
• The ALJ desires expert medical opinion regarding the onset of an impairment.

The Medical Expert is a "Neutral Advisor"

This list clearly suggests that an ALJ can solicit testimony from an ME to resolve any question about the medical evidence. The Supreme Court has commented that the use of MEs is not "reprehensible." In the case they reviewed, the ME was a board-certified specialist and he was characterized as a "neutral advisor" providing explanation of medical problems in a complex case “in terms understandable to the lawman-examiner.” But there are problems with asking an ME his opinion on many of the issues enumerated in the HALLEX above.

First, this list includes some issues reserved to the Commissioner (meeting a listing and RFC) which are not medical issues but "administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability." While some listings include strictly medical criteria, many have criteria which include symptoms and functional limitations. And, of course, the RFC “must be based on all the relevant evidence.” An opinion from an examining or treating source would provide a more appropriate opinion on these criteria than a non-examining, non-treating source. This is especially true if the ME has not heard the claimant’s testimony.

Some ALJs take testimony from the ME at the beginning of the hearing and allow the expert to leave. The HALLEX does explain that an ME is not required to attend the entire hearing. The ME is also not allowed to "conduct any type of physical or mental status examination of the claimant during the hearing." And, the list above does specify that if the ALJ asks the ME about RFC, the testimony is restricted to the medical evidence of record. But we all know that MEs go beyond the medical evidence of record in their testimony.

I have won cases with helpful MEs who did testify that even though the medical evidence of record did not provide listing criteria, the claimant would meet a listing if the ALJ found him/her credible. Occasionally this testimony is based on the claimant’s strong work history and age, my opening statement, or the client’s clear symptomatology during the hearing (especially for mental impairments).

This is, of course, a double edged sword and some MEs will mischaracterize the evidence based on their own bias or competency. Those situations call for effective cross-examination, closing statements and/or post hearing briefs.

Evidence of Bad Behavior in the Record

Incarceration

Some MEs find it difficult to be objective if the client has a criminal record. This may be evident when there are medical records in evidence during periods of incarceration. But MEs do not know how incarceration affects disability. The best way to deal with this is to acknowledge in an opening statement the time frames of incarceration, how these affect entitlement, and the relevant authority. The ALJ knows that the claimant will not receive benefits during these periods but the ME may not. Also, prepare the client to be totally honest about this and they will present in a more sympathetic fashion.

Drug and Alcohol Usage

Some MEs are also biased against clients who have drug use in their background, especially illegal drug use. They are often asked by the ALJ to provide an opinion on materiality with little understanding of the legal concept. Again, knowing SSA guidance is critical to a proper cross-examination of the ME.

Failure to Follow Prescribed Treatment

The HALLEX actually suggests that MEs should be asked to assess compliance if it is in the record. But medical non-compliance is not the same concept as the Commissioner’s definition of "failure to follow prescribed treatment" found in SSR 82-59. The advocate should acknowledge all medical non-compliance in the record and make the distinction in an opening statement.